Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial

A California man charged with violating the DMCA by modifying Xbox 360 consoles won’t be allowed to claim “fair use” at his scheduled jury trial next week, a federal judge ruled Tuesday — a decision potentially devastating to the defense, and not particularly favorable to anyone who thinks they have the right to tinker with hardware that they’ve bought and paid for.

Matthew Crippen, 28, faces three years in prison on two allegations of violating the anti-circumvention provisions of the Digital Millennium Copyright Act for financial gain. Crippen, who’s from Anaheim, allegedly had a business modding Xbox 360s for between $60 and $80 a pop, allowing the consoles to run pirated games or unapproved homebrew software. He was indicted after allegedly performing the service for an undercover corporate security investigator with the Entertainment Software Association, then again for an undercover federal agent.

His trial is set to begin on November 30 in Los Angeles, and would be the first federal criminal prosecution for console-modding to reach a jury.

Crippen’s lawyer hoped to convince that jury that Crippen’s alleged modifications weren’t intended to enable piracy, but to allow Xbox owners to make lawful “fair use” of copyrighted material, or for other non-infringing purposes. The lawyer compared modding the console to jail breaking an iPhone, an activity explicitly permitted under a recent DMCA exception approved by the U.S. Copyright Office.

“The Copyright Office cited the fact that the only way for consumers to exercise their fair-use rights by running non-Apple endorsed applications was through circumvention of access controls,” wrote Callie Glanton Steele, a Los Angeles federal deputy public defender, in a court filing.

But U.S. District Judge Philip shot down that argument Tuesday, noting that the DMCA makes it a crime to “circumvent a technological measure that effectively controls access” to copyrighted material, even if there’s no proof that the circumvention was intended to facilitate piracy. The iPhone exemption is irrelevant, he wrote, because the Copyright Office did not extend that exemption to game consoles — just phones.

“[A]lthough the government will have to establish that the technological measure that Mr. Crippen allegedly circumvented was used to control access to copyrighted work, the Government need not show that the modified Xbox’s were actually used for infringing purposes,” (.pdf) wrote Gutierrez.

The decision isn’t a surprise, but it highlights the troubling conflict created by the 1998 DMCA. Copyright law still allows for the fair use of protected material — for example, an educator might be allowed to copy a brief scene from a DVD movie for classroom instruction. But if a hardware-maker deploys technology that prevents that fair use, bypassing that technology for any reason is unlawful.

Other pre-trial issues remain to be decided in the case, including the admissibility of a covert video recording of Crippen allegedly performing the modification, and whether or not the jury can hear the testimony of hardware hacking guru Andrew “Bunnie” Huang, who’s agreed to testify for the defense.

Huang told Threat Level last month that he’s prepared to offer expert testimony that the Xbox 360 hack doesn’t circumvent a copy control mechanism within the meaning of the DMCA. The government has asked Gutierrez to block his testimony.